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Before the
Federal Communications Commission
Washington, DC 20554
)
)
In the Matter of
)
John A. Bering
)
Craigslist PostingIDs 3048376093, File No.: EB-SED-12-00004463
3118792895, 3249078140, 3152276537, )
3151207916
)
Cincinnati Craigslist (Ohio)
)
)
CITATION AND ORDER
ILLEGAL MARKETING AND OPERATION OF SIGNAL JAMMING DEVICE
Adopted: October 15, 2012 Released: October 15, 2012
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. INTRODUCTION
1. This is an official CITATION AND ORDER (Citation) issued pursuant to
Section 503(b)(5) of the Communications Act of 1934, as amended
(Communications Act), to John A. Bering (Mr. Bering or "you") for
marketing illegal signal jamming devices (jamming device or jammer) by
repeatedly posting classified advertisements for the devices on
Craigslist.org in willful and repeated violation of Section 302(b) of
the Communications Act and Sections 2.803 and 15.201(b) of the Federal
Communications Commission (Commission or FCC) rules (Rules). The
Citation also finds that Mr. Bering operated an illegal jamming device
in violation of Sections 301, 302, and 333 of the Communications Act.
2. Jamming devices, such as cell phone jammers and GPS blockers, pose
serious risks to critical public safety communications and can prevent
individuals from making 9-1-1 and other emergency calls. Jammers can
also interfere with law enforcement communications. You should take
immediate steps to come into compliance and to avoid any recurrence of
this misconduct. For example, any operation of the signal jammer must
cease immediately, and you are strongly encouraged to voluntarily
relinquish the illegal jamming devices. You also may not advertise
jamming devices for sale to any consumer in the United States through
Craigslist or through any other means.
3. We emphasize that the mere posting of a jamming device for sale on
Craigslist or any other online site or bulletin board targeting U.S.
consumers contravenes federal law. Consistent with this federal
prohibition, Craigslist expressly bars the sale and advertisement of
signal jamming devices on its site. Therefore, you have not only
violated federal law, but also contravened the contractual agreement
that governs your use of Craigslist. We will forward a copy of this
Citation to Craigslist for any action it may find appropriate under
the Craigslist Terms of Use.
4. As explained below and as provided in the Communications Act, future
violations of the Rules in this regard may subject you to substantial
monetary penalties, seizure of equipment, and criminal sanctions.
Pursuant to Sections 4(i), 4(j), and 403 of the Communications Act, we
also direct you to:
* confirm within fifteen (15) calendar days after the release date of
this Citation that you have ceased marketing and operating any jamming
device;
* provide information concerning the source(s) from which you purchased
or received the jamming devices you advertised on Craigslist as well
as any other jamming devices you may have, or previously may have had,
in your possession; and
* provide information concerning any jammer sales that you may have
made.
II. background
5. On various dates between June and September 2012, the Spectrum
Enforcement Division of the Enforcement Bureau (Bureau) through its
market surveillance efforts observed advertisements for jamming
devices on Craigslist. One of the advertisements was titled "Cell
phone jammers - $75 (Colerain)" and read:
great for the movies don't be botherd again with a cell phone lite in your
eyes from someone in front of you when you want to watch the movies will
trade or sell it is new works great have two want to sell or trade one
most put Jammer in the subject line for a answer back [sic].
6. Bureau staff subsequently responded to the Craigslist posting via
email and inquired about the jamming devices. Mr. Bering replied to
this email inquiry, confirming that a jammer was for sale. In
addition, in a further email, Mr. Bering noted the effective
operational range of the jamming device, based on his experience
operating the device.
III. applicable law and violations
A. Marketing and operation of jammers prohibited by federal law
7. Federal law prohibits the advertising, sale, and operation of jamming
devices in the United States and its territories. Section 301 of the
Communications Act prohibits the use or operation of "any apparatus
for the transmission of energy or communications or signals by radio"
within the United States unless such use is licensed or authorized.
Section 333 of the Communications Act states that "[n]o person shall
willfully or maliciously interfere with or cause interference to any
radio communications of any station licensed or authorized by or under
this Act or operated by the United States Government." In addition,
Section 302(b) of the Communications Act provides that "[n]o person
shall manufacture, import, sell, offer for sale, or ship devices or
home electronic equipment and systems, or use devices, which fail to
comply with regulations promulgated pursuant to this section."
8. The applicable implementing regulations for Section 302(b) are set
forth in Sections 2.803, 15.201, and 15.3(o) of the Rules. Section
2.803(a)(1) of the Rules provides that:
no person shall sell or lease, or offer for sale or lease (including
advertising for sale or lease), or import, ship, or distribute for the
purpose of selling or leasing or offering for sale or lease, any radio
frequency device unless . . . [i]n the case of a device subject to
certification, such device has been authorized by the Commission in
accordance with the rules in this chapter and is properly identified and
labeled as required by S: 2.925 and other relevant sections in this
chapter.
Additionally, Section 2.803(g) of the Rules provides in relevant part
that:
[R]adio frequency devices that could not be authorized or legally operated
under the current rules . . . shall not be operated, advertised,
displayed, offered for sale or lease, sold or leased, or otherwise
marketed absent a license issued under part 5 of this chapter or a special
temporary authorization issued by the Commission.
9. Pursuant to Section 15.201(b) of the Rules, intentional radiators like
jamming devices cannot be marketed in the United States or its
territories unless they have first been authorized in accordance with
the Commission's certification procedures. Section 2.803(e)(4) of the
Rules defines "marketing" as the "sale or lease, or offering for sale
or lease, including advertising for sale or lease, or importation,
shipment or distribution for the purpose of selling or leasing or
offering for sale or lease."
10. Jamming devices, however, cannot be certified or authorized because
their primary purpose is to block or interfere with authorized radio
communications. Thus, jamming devices such as those offered on
Craigslist by Mr. Bering cannot comply with the FCC's technical
standards and therefore cannot be marketed lawfully in the United
States or its territories.
A. Illegal signal jammer advertisement on Craigslist
11. The evidence indicates that Mr. Bering was illegally marketing jamming
devices to consumers in the United States. As noted above, beginning
on June 6, 2012, Mr. Bering advertised cell phone jammers on
Craigslist. In fact, the Bureau's investigation revealed that Mr.
Bering is a frequent poster of jamming devices on Craigslist, posting
no less than five different jammer advertisements over the last few
months and as recently as September 8, 2012. Craigslist is a
classified advertisements website, generally involving an online
listing for a product or service followed by an email or telephone
exchange and an in-person meeting between the buyer and seller.
Craigslist users are prohibited from posting advertisements to
multiple geographic areas. Consistent with this policy, Mr. Bering
posted his jammer advertisements on one of more than 300 local sites
on Craigslist-the Cincinnati, Ohio site, available at
http://cincinnati.craigslist.org. These illegal online offers for sale
were repeated in email correspondence with Bureau staff, where Mr.
Bering confirmed that he was still marketing the jammers.
12. We note that both the Craigslist Terms of Use and the Craigslist
Prohibited Items List prohibit the sale and advertisement of cell
phone jammers, GPS blockers, and other signal jamming devices. The
Craigslist Terms of Use states: "Content prohibited from craigslist
includes but is not limited to: . . . content in facilitation of the
creation, advertising, distribution, provision or receipt of illegal
goods or services." The Craigslist Prohibited Items List then applies
this policy directly to signal jamming devices, noting that "[i]llegal
telecommunications equipment, including . . . signal jamming devices,"
is "not permitted on craigslist."
13. Accordingly, we find that Mr. Bering has willfully and repeatedly
violated Section 302(b) of the Communications Act and Sections 2.803
and 15.201(b) of the Rules by marketing in the United States radio
frequency devices that are not eligible for certification. We
therefore issue this Citation to Mr. Bering for violating the
Communications Act and the Rules as discussed above. Jamming devices
pose significant risks to public safety and potentially compromise
other radio communications services. Mr. Bering should take immediate
steps to ensure that he does not continue to market jamming devices in
the United States or its territories, including on Craigslist.
A. Unlawful operation of signal jamming device
14. Mr. Bering also admitted to operating one of the jamming devices at
issue in the Craigslist posting. As detailed above, the operation of a
jammer by an individual consumer, even on private property, is per se
unlawful. This means that it is illegal for a consumer to use a jammer
on mass transit (e.g., train, bus) or in a residence, vehicle, school,
theater, restaurant or in any other public or private place. We
therefore find that Mr. Bering has illegally operated a jamming device
in violation of Sections 301, 302(b), and 333 of the Communications
Act. Operation of this device or any other jamming device must cease
immediately.
15. We are increasingly concerned that individual consumers who operate
jamming devices do not appear to understand the potentially grave
consequences of using a jammer. Instead, these operators incorrectly
assume that their illegal operation is justified by personal
convenience or should otherwise be excused. For example, many of Mr.
Bering's advertisements tout the use of a jammer in a movie theater.
The advertisements do not, however, mention the risk associated with
using a jammer in such a public place, leaving patrons unable to call
for help in case of an emergency. While we previously have issued
warnings to such operators in the first instance-primarily because
non-monetary penalties historically have proven effective in deterring
unlawful operation by individuals-we are not required to do so. We are
mindful of the serious risks posed by jamming devices and the apparent
need to provide greater incentives for individual operators to cease
the operation, importation, and sale of jamming devices altogether.
Therefore, we caution you and other potential violators that going
forward, and as circumstances warrant, we intend to impose substantial
monetary penalties, rather than (or in addition to) warnings, on
individuals who operate a jammer. Furthermore, the issuance of the
instant Citation does not preclude the Commission from taking
additional enforcement action in this case.
16. We again emphasize that if any jamming devices remain within your
possession or control, you are strongly urged to contact the Bureau to
arrange to voluntarily relinquish the jammers. Except for the very
limited context of authorized, official use by the federal government,
jamming devices have no legal use in the United States. The Bureau's
contact information is provided in paragraph 20 below.
IV. FUTURE COMPLIANCE
17. If after receipt of this Citation, Mr. Bering violates the
Communications Act or the Rules by marketing or operating an
unauthorized radio frequency device within the United States or its
territories or otherwise engaging in conduct of the type described
herein, the Commission may impose monetary forfeitures of up to
$16,000 for each such violation or, in the case of a continuing
violation, the Commission may impose monetary forfeitures of up to
$16,000 for each day of such continuing violation up to a maximum
forfeiture of $112,500 for any single act or failure to act. For
instance, the Commission could impose separate forfeitures for each
signal jammer sold and/or for each day on which a signal jammer is
operated, advertised, or otherwise offered for sale. Violations of the
Communications Act or the Rules can also result in seizure of
equipment through in rem forfeiture actions, as well as criminal
sanctions, including imprisonment.
18. In addition to providing the required information described in
paragraph 22 below, you may respond to this Citation either through
(1) a personal interview at the closest FCC office, which must take
place within thirty (30) calendar days of the release date of this
Citation, or (2) submission of a written statement, within fifteen
(15) calendar days after the release date of this Citation. Any
written statement should specify the actions you have taken to ensure
that you do not violate the Communications Act or the Rules governing
the marketing or operation of jamming devices in the future. Please
reference file number EB-SED-12-00004463 when corresponding with the
Commission.
19. Under the Privacy Act of 1974, any statement or information you
provide may be used by the Commission to determine if further
enforcement action is required. Section 1.17 of the Rules also
requires that you provide truthful and accurate statements to the
Commission. Any knowingly or willfully false statement, or concealment
of any material fact, made in reply to this Citation is punishable by
fine or imprisonment.
V. CONTACT INFORMATION
20. The closest FCC office is the Chicago, Illinois office. You may
contact the Spectrum Enforcement Division by telephone, 202-418-1160,
to schedule an interview, which must take place within thirty (30)
calendar days after the release date of this Citation. You should send
any written statement within fifteen (15) calendar days after the
release date of this Citation to:
John D. Poutasse
Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
445 12th Street, SW, Rm. 3-C366
Washington, DC 20554
Re: EB File No.: EB-SED-12-00004463
21. Reasonable accommodations for people with disabilities are available
upon request. Include a description of the accommodation needed,
including as much detail as possible. Also include a way we can
contact you if we need more information. Please allow at least five
(5) calendar days advance notice; last minute requests will be
accepted, but may be impossible to fill. Requests may be submitted by
email to fcc504@fcc.gov or by phone to the Commission's Consumer &
Governmental Affairs Bureau:
For sign language interpreters, CART, and other reasonable accommodations:
202-418-0530 (voice), 202-418-0432 (tty);
For accessible format materials (braille, large print, electronic files,
and audio format):
202-418-0531 (voice), 202-418-7365 (tty).
VI. REQUEST FOR INFORMATION
22. Pursuant to Sections 4(i), 4(j), and 403 of the Communications Act,
you are directed to provide the information requested in the
non-public Appendix C hereto within fifteen (15) calendar days after
the release date of this Citation. The Request for Information
concerns your jamming device supplier(s) and sale(s) as well as the
disposition of any jamming devices in your possession. Failure to
respond to the Request for Information, or an inadequate, incomplete,
or misleading response, may subject you to additional sanctions.
VII. ORDERING CLAUSES
23. IT IS ORDERED that pursuant to Sections 4(i), 4(j), and 403 of the
Communications Act of 1934, as amended, John Bering must provide the
information requested in paragraphs 4 and 22, as well as the
non-public Appendix C to this Citation and Order. The response to the
Request for Information must be provided in the manner indicated
herein and must be received by the FCC within fifteen (15) calendar
days after the release date of this Citation and Order.
24. IT IS FURTHER ORDERED that a copy of this Citation and Order shall be
sent by email, First Class U.S. Mail, and Certified Mail to his
addresses of record.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Chief, Spectrum Enforcement Division
Enforcement Bureau
APPENDIX A
Illegal Jammer Advertisements on Craigslist
APPENDIX B
Craigslist Prohibited Items List
47 U.S.C. S: 503(b)(5).
See http://cincinnati.craigslist.org/ele/3048376093.html dated June 6,
2012 (last visited Sept. 10, 2012). Craigslist.org (Craigslist) is a
website with classified ads and forums devoted to jobs, housing,
personals, goods, services, and local activities. See
http://www.craigslist.org/about/factsheet (last visited Oct. 4, 2012).
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 15.201(b).
47 U.S.C. S:S: 301, 302, 333; see also 47 C.F.R. S: 15.1(c).
See Craigslist Terms of Use, http://www.craigslist.org/about/terms.of.use
(last visited July 31, 2012).
47 U.S.C. S:S: 154(i), 154(j), 403.
See, e.g., http://cincinnati.craigslist.org/ele/3048376093.html dated May
31, 2012 (last visited Sept. 10, 2012). The record indicates that similar
advertisements were posted on multiple dates, including July 20, July 24,
August 18, and September 8, 2012. Samples of the illegal advertisements
are attached hereto as Appendix A.
Id.
Email to John Bering (July 24, 2012, 12:16:00 EST) (on file in
EB-SED-12-00004463).
Email from John Bering (July 24, 2012, 12:17:00 EST) (on file in
EB-SED-12-00004463) (Bering Email First Reply).
Email from John Bering (July 24, 2012, 18:44:00 EST) (on file in
EB-SED-12-00004463) (Bering Email Second Reply).
47 U.S.C. S: 301.
Id. S: 333.
Id. S: 302a(b).
47 C.F.R. S:S: 2.803, 15.201, 15.3(o).
Id. S: 2.803(a)(1) (emphasis added).
Id. S: 2.803(g) (emphasis added).
Id. S: 15.201(b).
An "intentional radiator" is a "device that intentionally generates and
emits radio frequency energy by radiation or induction." Id. S: 15.3(o).
Id. S: 2.803(e)(4).
In very limited circumstances and consistent with applicable procurement
requirements, individuals and/or entities may market jamming devices to
the U.S. federal government for authorized, official use. See 47 U.S.C. S:
302a(c); 47 C.F.R. S: 2.807(d).
See Appendix A.
See Craigslist Terms of Use, Section 4a, Postings,
http://www.craigslist.org/about/terms.of.use (last visited July 31, 2012)
(noting that "craigslist is intended and designed as a local service.").
Craigslist permits an individual to post free classified advertisements
for goods and services, and through its anonymize email feature,
facilitates communications between the seller and the potential buyer. See
http://www.craigslist.org/about/anonymize (last visited Aug. 9, 2012)
(stating that if a seller selects the anonymize feature, the posting will
display a Craigslist email address and that Craigslist will relay any
messages sent to that address to the seller's email address).
See Craigslist Terms of Use, Section 4a, Postings,
http://www.craigslist.org/about/terms.of.use (last visited July 31, 2012)
(noting also that "a user may post content only to the single specific
geographic area offered on craigslist (see
http://www.craigslist.org/about/sites) for which that content is most
relevant" and that "[t]he same or substantially similar content (for
example, an ad for a particular item or service, a particular offer, a
particular message or a particular comment) may not be posted to or
communicated via more than one such geographic area. Content that is
equally relevant to multiple (i.e., more than one) geographic areas should
not be posted on craigslist.").
See Bering Email First Reply and Bering Email Second Reply (on file in
EB-SED-12-00004463).
See Craigslist Terms of Use, Section 3a, Content,
http://www.craigslist.org/about/terms.of.use (last visited July 31, 2012).
See http://www.craigslist.org/about/prohibited.items (emphasis added)
(last visited July 30, 2012), attached hereto as Appendix B.
See supra text accompanying note 12. (Specifically, Mr. Bering stated that
he operated a jamming device at his house and found that its effective
range was up to 80 feet.)
See 47 C.F.R. S: 15.5(c).
The illegal use of a signal jamming device within the United States may be
reported to the FCC at http://www.fcc.gov.complaints. For Frequently Asked
Questions and other information regarding the illegal marketing or use of
cell phone jammers, GPS blockers, and other signal jamming devices, please
consult the FCC's jammer enforcement webpage at
http://www.fcc.gov/jammers.
See 47 U.S.C. S: 503; 47 C.F.R. S: 1.80(b)(3). These amounts are subject
to further adjustment for inflation and the forfeiture amount applicable
to any violation will be determined based on the statutory amount
designated at the time of the violation. See 47 C.F.R. S: 1.80(b)(5).
See 47 U.S.C. S: 510.
See id. S:S: 401, 501.
See Privacy Act of 1974, 5 U.S.C. S: 552a(e)(3).
See 47 C.F.R. S: 1.17 ("[N]o person subject to this rule shall[:] (1) In
any written or oral statement of fact, intentionally provide material
factual information that is incorrect or intentionally omit material
information that is necessary to prevent any material factual statement
that is made from being incorrect or misleading; and (2) In any written
statement of fact, provide material factual information that is incorrect
or omit material information that is necessary to prevent any material
factual statement that is made from being incorrect or misleading without
a reasonable basis for believing that any such material factual statement
is correct and not misleading.").
See 18 U.S.C. S: 1001 et seq.
47 U.S.C. S:S: 154(i), 154(j), 403.
See, e.g., SBC Communications, Inc., Apparent Liability for Forfeiture,
Forfeiture Order, 17 FCC Rcd 7589 (2002) ($100,000 forfeiture for refusing
to attest to truthfulness and accuracy of responses to a Bureau letter of
inquiry); Connect Paging, Inc. d/b/a Get A Phone, Forfeiture Order, 22 FCC
Rcd 15146 (Enf. Bur. 2007) ($4,000 forfeiture for failure to respond to a
Bureau letter of inquiry); BigZoo.Com Corporation, Order of Forfeiture, 20
FCC Rcd 3954 (Enf. Bur. 2005) ($20,000 forfeiture for failure to respond
to an LOI); Donald W. Kaminski, Jr., Forfeiture Order, 18 FCC Rcd 26065
(Enf. Bur. 2003) ($4,000 forfeiture for failure to respond to a Bureau
letter of inquiry).
Federal Communications Commission DA 12-1593
5
Federal Communications Commission DA 12-1593